The U.S. Department of Education, Office of Special Education and Rehabilitative Services (OSERS) published a Question and Answer document to advise school districts on returning to in-person instruction. The OSERS Q&A provides guidance on special education issues, including IEP meetings, extended school year services, mental health, medical conditions, transition services, and placement. While much of the document reiterates long-standing law, OSERS does provide some new guidance specific to COVID-19 transitions. We will be releasing a series of blog posts focused on those new issues.

For our first post, we focus on the highly anticipated guidance related to compensatory services. Here are the main takeaways:

1. The OSERS position is that compensatory services are an equitable remedy to address a past failure or inability to provide appropriate services. Note that while compensatory education awarded by a hearing officer or court is predicated on a denial of FAPE, the guidance here suggests that schools consider providing compensatory services both where the district failed to provide services and where the district was unable to provide services. This more expansive application has been criticized as being an overreach and confusing.

If a district provided a remote learning plan that was reasonably calculated to allow the student to make progress appropriate in light of the student’s circumstances (including a pandemic that foreclosed consistent in-person instruction), is that sufficient? Under Endrew F., arguably yes. Under this guidance, if remote services were not able to meet a student’s needs (even though only remote services were possible), arguably no. We will continue to monitor the case law as it develops on this issue, but this guidance on compensatory services appears to go beyond the legal concept of compensatory education.

2. Circumstances that may warrant consideration of compensatory services. According to OSERS, IEP teams should consider compensatory services: (1) if the initial evaluation, eligibility determination, or IEP development and implementation were delayed; (2) if the special education and related services provided remotely or in a hybrid model were not appropriate to meet a student’s needs; (3) if all or some of the IEP could not be implemented (physical therapy, behavior interventions, etc.); and (4) if meaningful postsecondary transition services were not provided.
3. The IEP team should make determinations regarding the need for compensatory services. To determine compensatory services, OSERS encourages IEP teams to consider input from prior teachers and service providers and to consider present levels of performance (before the pandemic and upon return to in-person instruction), the rate of progress (prior to the pandemic and during any remote or hybrid instruction), and the extent to which the IEP was implemented during any remote or hybrid instruction. Well-reasoned and documented decisions related to compensatory services are likely to be given deference by hearing officers if challenged.
4. The IEP team should also determine if the student’s needs have changed and warrant changes to the student’s current IEP goals and services. In addition to considering compensatory services, it is also appropriate for IEP teams to review whether a student’s present levels have changed such that the goals, accommodations, or services also need to be revised. The distinction between IEP revisions to address changed needs and compensatory services as that term is used by OSERS is not entirely clear and the two may blur together in some cases.
5. Recovery services and COVID mitigation services may not be sufficient. If such services are provided or available to all students on the same basis to mitigate the impact of the pandemic, the services may not qualify as compensatory services. Compensatory services should be individualized to address a specific lack of progress experienced by a particular student.

The OSERS guidance on compensatory services, while not inconsistent with prior guidance, seems out of touch in terms of its timing and the lack of resources to support a sweeping mandate for additional services. Further, there has not been a groundswell of demand from parents for additional services. Most families seem focused on getting their students readjusted to full-time in-person learning with their peers. To the extent that a student’s progress was negatively impacted by a disruption in services or change of service delivery, the IEP team should be prepared to consider whether the IEP should be revised and to respond to parent requests for compensatory services based on this guidance.

Please stay tuned for additional updates related to the Department’s Q&A on School Reopening.